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IF A GOVERNMENT AGENCY TO WHICH A FOIL REQUEST HAS BEEN MADE DOES NOT POSSESS ANY RESPONSIVE DOCUMENTS, THE AGENCY MUST PROVIDE A CERTIFICATION TO THAT EFFECT (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined that if the records petitioner sought in his FOIL request do not exist or cannot be found, the respondent must so certify: … [T]he statute commands that a government entity that does not supply any record in response to a FOIL request “shall certify that it does not […]

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EACH TIME PLAINTIFF’S MARKETING DIRECTOR ENTERED A CONTRACT WITH A COMPANY IN WHICH THE DIRECTOR HAD AN OWNERSHIP INTEREST CONSTITUTED A SEPARATE WRONG UNDER THE CONTINUING WRONG DOCTRINE; THE COMPLAINT STATED CAUSES OF ACTION FOR FRAUD AND BREACH OF FIDUCIARY DUTY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the continuing wrong doctrine applied to each time defendant hired Exit for video editing services within six years of filing the complaint. In addition, the complaint stated a cause of action for breach of a fiduciary duty: This action arises from the conduct of plaintiff’s former director […]

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ALTHOUGH FAMILY COURT THREATENED TO FIND RESPONDENT IN DEFAULT WHEN HE DID NOT PROVIDE PROOF HE FAILED TO APPEAR BECAUSE HE WAS HOSPITALIZED, FAMILY COURT DID NOT ULTIMATELY GIVE RESPONDENT A “DEFAULT WARNING;” RESPONDENT AND HIS COUNSEL WERE PRESENT AT THE FACT-FINDING BUT WERE PRECLUDED BY THE COURT FROM PARTICIPATING; RESPONDENT HAS A RIGHT TO BE HEARD ON THE ABANDONMENT ISSUE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent father in this termination of parental rights proceeding was not in default and that he was entitled to present a defense. To explain his failure to appear, respondent said he was hospitalized but he did not provide any proof of hospitalization when the court requested it. The […]

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THE USE OF ELECTRONIC LOGGING DEVICES (ELD’S) TO MONITOR THE HOURS AND PLACES OF OPERATION OF COMMERCIAL MOTOR VEHICLES (CMV’S) AND THE INSPECTION OF ELD’S BY LAW ENFORCEMENT PERSONNEL DURING ROADSIDE SAFETY INSPECTIONS CONSTITUTE VALID ADMINSITRATIVE SEARCHES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan (too comprehensive to fairly summarize here), determined the use of electronic logging devices (ELD’s) to monitor the hours and places of operation of commercial motor vehicles (CMV’s), such that the data collected by the ELD’s can be inspected by law enforcement personnel, does not constitute […]

PLAINTIFF AGREED TO PROVIDE POURED, NOT PUMPED, CONCRETE AND SPECIFICALLY EXCLUDED THE INSTALLATION OF TACTILE STRIPS FROM THE SUBCONTRACT; DEFENDANT SUBSEQUENTLY REQUESTED THAT PLAINTIFF PROVIDE PUMPED CONCRETE AND INSTALL TACTILE STRIPS; THESE CHANGES WERE MATERIAL BUT NOT “CARDINAL” SUCH THAT PLAINTIFF’S PERFORMANCE WAS EXCUSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant’s (Banton’s) requested changes to the contract were not a “cardinal changes” such that Banton breached the contract. The plaintiff, pursuant the subcontract, provided concrete for the construction project. The original subcontract indicated plaintiff would “pour” not “pump” the concrete and would not install “tactile strips.” Subsequently, […]

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PLAINTIFF COUNTY, ACTING ON BEHALF OF THE NURSING HOME WHERE DECEDENT WAS CARED FOR, WAS ENTITLED TO DISCLOSURE OF DECEDENT’S TAX RETURNS; THE RETURNS ARE RELEVANT TO WHETHER DECEDENT’S SON BREACHED THE “RESPONSIBLE PARTY AGREEMENT” WHICH REQUIRED HIM TO USE THE DECEDENT’S INCOME TO PAY THE NURSING HOME (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, plaintiff county (on behalf of the nursing home where decedent was cared for) was entitled to disclosure of decedent’s tax returns in this action against decedent’s son. The action alleged the son breached the “responsible party agreement” in which the son agreed to pay the decedent’s nursing home […]

PLAINTIFF SLIPPED AND FELL ON A PLASTIC SHEET PLACED OVER AN ESCALATOR TO PROTECT IT FROM DRIPPING PAINT; PLAINTIFF’S LABOR LAW 241 (6) ACTION DISMISSED; THE PLASTIC COVER WAS NOT A FOREIGN SUBSTANCE; AND THE PLASTIC COVER WAS AN INTEGRAL PART OF THE WORK; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over an extensive two-justice dissent, determined two provisions of the Industrial Code did not apply to this slip and fall on a plastic covering used to protect an escalator from dripping paint. The code provision requiring areas to be kept free of slippery “foreign substances” did not apply. And […]

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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DID NOT ADEQUATELY EXPLAIN THE STATUTORY FACTORS SUPPORTING ITS DENIAL OF PETITIONER’S REQUEST FOR A CERTIFICATE OF GOOD STANDING, WHICH WOULD ALLOW THE FORMER INMATE TO WORK AS A SCHOOL BUS DRIVER; THEREFORE THE DENIAL WAS ARBITRARY; MATTER REMITTED FOR FURTHER PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Department of Corrections and Community Supervision’s (DOCCS’s) denial of petitioner’s application for a certificate of good conduct (CGC) was not supported by the agency’s cursory rulings, rendering the denial arbitrary and requiring remittal for further proceedings. Petitioner, a former inmate with a sexual-offense conviction, sought the certificate […]

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ALTHOUGH THE VAPING ASSOCIATION PREVAILED IN ITS ACTION FOR A PRELIMINARY INJUNCTION STAYING THE ENFORCEMENT OF THE DEPARTMENT OF HEALTH’S REGULATIONS BANNING FLAVORED VAPING LIQUIDS, THE DEPARTMENT’S ACTION WAS “SUBSTANTIALLY JUSTIFIED;” THEREFORE THE VAPING ASSOCIATION WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent Public Health and Planning Council (within the NYS Department of Health) (the council) should not have been ordered to pay attorney’s fees to petitioner Vapor Technology Association (the vaping association) pursuant to the State Equal Access to Justice Act. The respondent council had adopted emergency regulations […]

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PLAINTIFFS STATED A CAUSE OF ACTION FOR MEDICAL MALPRACTICE BY ALLEGING THE TREATMENT OF PLAINTIFF’S DECEDENT AGAINST THE WISHES OF DECEDENT AND DECEDENT’S HEALTH-CARE AGENTS PROLONGED DECEDENT’S PAIN AND SUFFERING; THE “WRONGFUL LIFE” LINE OF CASES DOES NOT APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined plaintiff stated a cause of action sounding in medical malpractice by alleging the treatment of plaintiff’s decedent against decedent’s wishes and the wishes of his health-care agents prolonged his pain and suffering. This action was distinguished from the “wrongful life” line […]

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